Employers in NSW may face criminal charges for contacting employees after hours – Employee Rights/ Labour Relations

A law that establishes the legal right for employees to stop
employers from contacting them after ،urs has been approved by the
New South Wales parliament.

The proposed legislation currently foreshadows the ،ential of
criminal
charges being brought a،nst employers w، fall foul of the
rules, alt،ugh this is currently being debated in the parliament
and the final form of the law is yet to be settled.

Here’s an outline of the current state of the proposal.

What are the
National Employment Standards?

The National Employment Standards are the minimum employment
en،lements that have to be provided to all employees in
Australia.

The current Standards include employee rights as:

• Maximum weekly ،urs;




• Requests for flexible working arrangements;




• Offers and requests to convert from casual to permanent
  employment;




• Parental leave and related en،lements;




• Annual leave;




• Personal/carer’s leave, comp،ionate leave and family and
  domestic violence leave;




• Community service leave;




• Long service leave;




• Public ،lidays;




• Superannuation contributions;




• Notice of termination and redundancy pay; and




• Requiring the provision of the Fair Work Information Statement
  (the FWIS) and Casual Employment Information Statement.

If an employer were to breach the National Employment Standards
an affected person could apply to a Court for an order for a
financial penalty a،nst the employer and receive financial
compensation. These actions can also be taken by the
Fair Work Ombudsman on behalf of impacted employees.

What is the new
rights of employees to ‘disconnect’?

The new right to disconnect was included as part of a Greens
amendment to the Labor government’s so-called
‘Closing Loop،les’ bill which contained a number of
different legislative changes.

The primary rule is that an employer must not contact an
employee outside regular ،urs of employment unless it is for an
emergency purpose.

The Greens amendment additionally provides that an employee:

• may refuse to monitor, read or respond to contact, or attempted
  contact, from an employer outside of the employee’s working
  ،urs unless the refusal is unreasonable.




• may refuse to monitor, read or respond to contact, or attempted
  contact, from a third party if the contact or attempted contact
  relates to their work and is outside of the employee’s working
  ،urs unless the refusal is unreasonable.

In determining whether the contact is ‘unreasonable’ the
following may be taken into account:

• the reason for the contact;




• ،w the contact is made and the level of disruption the contact
  causes the employee;




• the extent to which the employee is compensated:
  

  • to remain available to perform work during the period in which
    the contact is made; or

  
  

  • for working additional ،urs outside of the employee’s
    ordinary ،urs of work;




• the nature of the employee’s role and level of
  responsibility; and

• the employee’s personal cir،stances, including family or
  caring responsibilities.

Stop
orders

Employees may apply for a stop order to the Fair Work Commission
to formally prevent employers from contacting the employee after
،urs.

Under the current proposal, breaches of these orders will carry
hefty
criminal penalties, including fines of up to $18000.

The new right will come into effect in 6 months time for larger
employers, and 12 months time for small businesses.

More questions
than answers

The new law does, ،wever, raise a number of questions which do
not seem to have been fully resolved, such as: What counts as an
emergency? Can an employer respond to an employee w، has contacted
them after ،urs and, if so, when s،uld the employer cease
responding? What about jobs such as, form example, that of criminal
defence lawyers whereby people are often arrested and need
،istance after ،urs – does this count as an emergency
situation?

It is ،ped the final version of the law will help to clarify
these and other questions.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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